Ligocky v. Wilcox

OPINION

WOOD, Chief Judge.

The herbicide, Defy, containing 2 — 4D, was applied to a milo field to kill weeds. Some adjacent cotton plants were damaged. The appeal involves: (1) liability of the supplier to the owner of the cotton on a theory of express warranty, and (2) liability of the person aerially applying the Defy to the owner of the cotton on a theory of strict liability.

Ligocky sued all the named defendants claiming his cotton had been damaged by the aerial application of Defy. His claims against Wilcox and Stewart were settled; the record does not show a disposition of Ligocky’s claims against the other defendants. Ligocky’s claims, however, are not involved in this appeal.

Wilcox, the owner of milo and cotton fields, cross-claimed against Sono, who sold the Defy to Wilcox, Marcak, a salesman for Sono, and Kalo Laboratories, Inc., who manufactured Defy. Kalo was never served and is not a party. Wilcox also cross-claimed against Stewart who was employed by Wilcox to aerially apply the Defy. The issues on appeal involve the disposition of these cross-claims.

Express Warranty

Wilcox cross-claimed against Sono and Marcak on a theory of an express warranty that had been breached. The alleged warranty, stated in Wilcox’ requested findings, was “that Defy would not drift or volatize and that it could be aerially applied on the milo and would not damage the adjoining cotton.” The trial court’s finding as to the warranty was “when properly applied it [Defy] would not volatize and drift onto adjoining crops.” The trial court found a warranty less extensive than the warranty claimed by Wilcox.

Wilcox claims the trial court erred in concluding that Sono and Marcak were not liable. Wilcox asserts that where a chemical drifts onto adjoining fields, the sellers are liable when they warrant the chemical will not drift onto the adjoining field. Wilcox’ argument does not challenge the trial court’s findings, but the conclusion of non-liability based on the findings made. This contention is based on a misunderstanding of the trial court’s findings.

The trial court did not find a warranty that Defy would not drift; rather, it found that Defy would not volatize and drift when properly applied. The findings distinguish between drifting as a result of air movement and drifting as a result of volatilization:

10. During the application of the Defy by Stewart it was drifted by air movements onto the adjoining cotton fields of Wilcox damaging same.

11. There was no substantial evidence that the Defy as applied to the milo crop volatized and the vapor drifted onto the cotton causing the damage involved.

Inasmuch as the warranty was that Defy would not volatize and drift, and inasmuch as the trial court’s finding was that the drifting resulted from air movements rather than from volatilization, the trial court’s conclusion was proper on the basis of unchallenged findings.

Strict Liability

Wilcox purchased the Defy from Sono and Marcak, and employed Stewart to aerially apply the Defy to the milo field. One of Wilcox’ theories of liability against Stewart, stated in Wilcox’ requested findings, was that Stewart knew that Defy contained 2-4D and knew that 2-4D was intrinsically and inherently dangerous. On this basis, Wilcox claimed that Stewart was liable for the damage to Wilcox’ cotton caused by 2-4D. Apparently the trial court understood this to be a claim of strict liability because:

(a) it found “2-4 D is intrinsically and inherently dangerous to cotton crops, and the 2-4 D as contained in the Defy was the only application of such chemical made in the area of the Wilcox farm on or about that time”; and

(b) it concluded “Stewart is strictly liable to Wilcox for the aerial drift of Defy on application causing damage to his cotton crop.”

A conclusion of strict liability does not follow from the finding that 2-4D in the Defy was intrinsically and inherently dangerous.

Strict liability in New Mexico, which is based on Restatement of Torts, Second § 402A (1965), is applied to suppliers-such as manufacturers, retailers and lessors. Stang v. Hertz Corporation, 83 N.M. 730, 497 P.2d 732, 52 A.L.R.3d 112 (1972). Stewart was not a supplier. Sono and Marcak supplied Defy to Wilcox who, in turn, supplied Defy to Stewart for aerial application. Inasmuch as this type of strict liability does not apply to Stewart, we do not reach the question of whether the Defy, as supplied, could be considered defective, or whether Wilcox could recover from Stewart, on any theory of strict liability, when Wilcox furnished the Defy to Stewart. Compare Chevron Oil Company v. Sutton, 85 N.M. 679, 515 P.2d 1283 (1973); Lay v. Vip’s Big Boy Restaurant, Inc., 89 N.M. 155, 548 P.2d 117 (Ct.App.1976); Hines v. St. Joseph’s Hospital, 86 N.M. 763, 527 P.2d 1075 (Ct. App.1974).

The trial court was not requested to, and did not find, that Defy was abnormally dangerous or unreasonably dangerous, thus this theory of strict liability is not applicable. See Gutierrez v. Rio Rancho Estates, Inc., 93 N.M. 755, 605 P.2d 1154 (1980); compare Rudisaile v. Hawk Aviation, Inc., 92 N.M. 575, 592 P.2d 175 (1979). Rather, the trial court found Defy was inherently and intrinsically dangerous to cotton crops. This finding confuses two statements in Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953). The statements are: 1. A 2-4D solution is “highly dangerous to cotton plants”; and 2. “[w]ork that is intrinsically and inherently dangerous in performance is not delegable ... . ”

In Pendergrass the defendant had 2-4D applied aerially. A neighbor’s cotton was damaged. The defendant was held liable to the neighbor for the negligent application of 2-4D by the operator of the plane, because defendant had full responsibility for the aerial spraying. Full responsibility was imposed because the work of aerially spraying 2 — 4D was intrinsically and' inherently dangerous, and responsibility in those circumstances could not be shifted to the operator of the plane. Pendergrass would have been applicable to Ligocky’s claim against Wilcox; it did not decide the different fact situation of this case which involves Wilcox’ claim against the person he employed to aerially apply Defy.

Stewart applied Defy aerially to Wilcox’ milo field. When he did so he knew the application of 2-4D to cotton was dangerous. During the spraying, the Defy drifted “by air movements” onto Wilcox’ adjoining cotton fields. The work was inherently and intrinsically dangerous. Pendergrass, supra. The nature of the work may be considered in determining whether Stewart was negligent in applying Defy. See U.J.I. Civil 12.2, which explains: “As the danger that should reasonably be foreseen increases, so the amount of care required also increases.” There is evidence that Wilcox knew the Defy contained 2-4D and knew of the warranty made by Sono and Marca k when he employed Stewart to apply Defy. In determining whether Stewart may be liable for any negligence on his part, the question of Wilcox’ possible contributory negligence (by assumption of risk, Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1972)) must also be considered.

Wilcox contends that under the trial court’s findings, we should hold that Stewart was negligent; Stewart, in turn, claims that under the same findings we should hold that Wilcox was contributorially negligent. Our answer is that these rulings are to be made by the trial court. These issues were presented to, but not decided by, the trial court because of its erroneous strict liability ruling.

The judgment in favor of Sono and Marcak on Wilcox’s warranty claim is affirmed. The judgment in favor of Wilcox and against Stewart, on a theory of strict liability, is reversed. The cause is remanded to the trial court to decide, as between Wilcox and Stewart, the claims of negligence and contributory negligence.

IT IS SO ORDERED.

WALTERS, J., concurs. SUTIN, J., concurring in part and dissenting in part.